Is public opinion on gay marriage ahead of justices?

The Big Idea

Posted: Sunday, August 29, 2010

By Michael Klarman

Courts almost never are at the vanguard of social change. In general, they have required sweeping cultural shifts such as school desegregation only when it was clear that a substantial percentage of Americans supported them. So what does this portend for same-sex marriage litigation, which is likely to end up before the Supreme Court eventually, especially in light of recent federal court rulings in Boston and San Francisco in favor of same-sex marriage?

The first same-sex marriage cases, filed by gay couples in the 1970s, were nearly laughed out of court.

But by the time of the most recent ruling in support of same-sex marriage, more than 40 percent of the nation - and an even greater percentage in California - supported it. The question now will be whether that's enough of a cultural shift to influence the Supreme Court's thinking.

Before World War II, the NAACP refused to challenge school segregation, knowing that a case would lose in court because most Americans supported the status quo. But by the time the Supreme Court issued its landmark decision in Brown v. Board of Education in 1954, half the country agreed with the outcome.

At the time that Brown barred state-mandated school segregation, however, 21 states and the District of Columbia still practiced it. Today, 45 states do not permit same-sex marriage. It would be unusual for the Supreme Court to turn a norm embraced by only five states into a constitutional command for the nation - unusual but not unprecedented: Roe v. Wade in 1973 invalidated the restrictive abortion laws of 46 states.

When courts advance social reform more quickly than public opinion supports, political backlashes often ensue. In the mid-1950s, white Southerners overwhelmingly denounced Brown as a judicial abuse of power. Critics insisted it nullified states' rights, usurped legislative authority, ignored judicial precedent and defied the original understanding of the 14th Amendment. And Brown, for all it was celebrated by civil rights advocates, had the effect of silencing Southern racial moderates, retarding progressive racial change, radicalizing Southern politics and creating a climate ripe for violence.

Similarly, in 2003, when the Massachusetts Supreme Court in the Goodridge case ruled that the state constitution entitled gay couples to marry, a ferocious backlash ensued.

The next year, 13 states - including Georgia - enacted constitutional amendments barring same-sex marriage. In addition, a couple of Democratic Senate candidates - one of them Majority Leader Tom Daschle of South Dakota - lost their contests partly because of the same-sex marriage issue. Indeed, President George W. Bush possibly owed his re-election that year to Goodridge. Without Ohio's electoral votes, Bush would not have won, and he carried the state by less than 2 percentage points. A referendum banning gay marriage drew conservatives to the polls, and it won by 24 percentage points.

In the long term, however, the effect of landmark court decisions on issues of social reform is more complicated. By unleashing ferocious white-on-black violence in the South, which then was communicated through the new medium of television to horrified national audiences, Brown ultimately transformed Northern opinion on race and facilitated enactment of groundbreaking civil rights legislation in the mid-1960s.

In the years since Goodridge, public support for gay marriage nationwide has increased by roughly 10 percentage points, and four more states and the District of Columbia have legalized same-sex marriage. In addition, conservative Republicans such as former Vice President Dick Cheney and John McCain campaign strategist Steve Schmidt recently have endorsed gay marriage. Civil unions - which were incredibly controversial just a decade ago - are today supported even by the likes of Rush Limbaugh.

On issues involving race and sexual orientation, court decisions have pushed in the same direction as deep-rooted economic, political and social forces. The justices who decided Brown understood that the collapse of Jim Crow was inevitable, observing during their deliberations that segregation was "gradually disappearing" and that it was "marked for early extinction." Indeed, Justice Robert Jackson went so far as to observe: "Whatever we might say today, within a generation (segregation) will be outlawed by decision of this court because of the forces of mortality and replacement, which operate upon it." Jackson's statement reflected his awareness that, in the 1950s, younger people were much more supportive of racial equality than were their elders.

Similarly today, people younger than 30 are as much as 40 percentage points more supportive of gay marriage than people over 65. One perspicacious statistician recently argued that it will take only another two or three years before a majority of people in a majority of states support gay marriage.

Present-day perspectives on past judicial decisions shift as public opinion changes. When Brown was decided, Americans were almost evenly divided on whether it was right. Today, more than 90 percent of the country agrees that state-mandated school segregation is unconstitutional. Since at least 1970, no prospective justice could have been confirmed for the Supreme Court without an unqualified endorsement of Brown. Ultimately, Americans evaluate court decisions according to the justness of the result, not on whether judges showed appropriate deference to legislatures or strayed from precedent and original understanding.

Few people relish being on the wrong side of history. Justice John Marshall Harlan, the lone dissenter from the court's 1896 decision upholding government-imposed racial segregation of railroads, became a hero during the civil rights era because of his prescient condemnation of state-enforced racial segregation.

When the gay marriage issue gets to the Supreme Court, the decision is likely to turn, as do nearly all important constitutional rulings these days, on the views of Justice Anthony M. Kennedy - probably the most powerful justice in the court's history. Kennedy sits squarely in the middle of today's ideologically polarized court. From his written opinions, we know Kennedy is more supportive of the constitutional rights of gay Americans than are his more conservative colleagues. We also know he is not oblivious to the judgment of history.

Although it would be mildly out of character for Kennedy to interpret the Constitution to impose the views of a mere handful of states on the entire nation, by the time a gay marriage case reaches the court, several additional states may be permitting same-sex couples to marry. Moreover, Kennedy can read the handwriting on the wall as well as anyone else. What better way is there to win the plaudits of future generations of Americans than to author the Supreme Court opinion eradicating one of the last formal barriers to equal citizenship for gays and lesbians?

• Michael Klarman is a professor at Harvard Law School and the author of "From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality," which won the 2005 Bancroft Prize. He wrote this for the Los Angeles Times.